Olivares-Carranza v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-61037
Summary Calendar
RICARDO ADOLFO OLIVARES-CARRANZA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of a Decision of the
Board of Immigration Appeals
BIA No. A28 843 780
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges
PER CURIAM:*
The petitioner, Ricardo Adolfo Olivares-Carranza (Olivares),
is a citizen of El Salvador who petitions this court to review the
decision of the Board of Immigration Appeals (BIA) denying relief
under the Convention Against Torture (CAT).
Olivares asserts that he left El Salvador in November 1981
because he feared persecution due to his political activities.
According to Olivares, he became involved in politics in El
Salvador when he was 15 years old (around 1978). He joined the
MERS, a political group that opposed the El Salvadorian government,

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and became a leader and organizer who spoke at many political
rallies. Olivares claims that, when he was 15, he was assaulted
by government agents who injured his hand by hitting it with an M-
16 firearm. He further alleges that when he was 17 years old his
girlfriend was killed for being an MERS sympathizer. Olivares
believes that her murderers were members of a government death
squad. According to Olivares, in July 1981, he and two friends
were assaulted by alleged members of a death squad. His two
friends were killed but he escaped with a bullet wound to the leg.
Later, Olivares fled for his safety and eventually illegally
entered the United States in 1983.
On February 27, 1990, Olivares was convicted in a Texas
District Court for possession of cocaine, and sentenced to eight
years imprisonment and eight years probation. Olivares was placed
in removal proceedings on April 11, 1990, and he subsequently
admitted deportability and applied for political asylum. He
maintains that he would be tortured if he returned to El Salvador
because of his involvement in the MERS, because he would be a “new
face” that was likely to attract attention, and because he would
“say something that [would] get [him] in trouble” if he say any
injustice taking place in El Salvador. Olivares also claims that
if he returned to El Salvador his wife and three children would
come with him and would be subjected to threats and danger.
For the thirteen years following the commencement of the
removal proceedings, various issues were litigated in the case.

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Ultimately, the Immigration Judge (IJ) found that Olivares’ prior
conviction for possession of cocaine constituted an aggravated
felony, which made him ineligible for political asylum and
withholding of removal. The IJ also found that Olivares was
ineligible for relief under the CAT due to his prior conviction,
but that he might qualify for deferral of removal under the
regulations if he could sustain his burden of proof under the CAT.
After a hearing, the IJ denied relief, finding that the petitioner
failed to satisfy his burden of proof under the CAT. The BIA
affirmed the decision.
We review legal conclusions de novo and findings of fact for
substantial evidence. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
(5th Cir. 2001). We will not reverse a BIA decision unless the
evidence is “‘so compelling that no reasonable fact-finder could
conclude against it.’” Moin v. Ashcroft, 335 F.3d 415, 419 (5th
Cir. 2003). In order to be granted relied under the CAT, Olivares
must show that it is more likely than not that he would be tortured
if removed to El Salvador. 8 C.F.R. §208.16(c)(2) (2002). The CAT
defines torture as “any act by which sever pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining...information or a confession,
punish[ment]..., or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public

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official or other person acting in an official capacity.” 8 C.F.R.
§208.18(a)(1) (2002).
In this case, Olivares has not made the requisite showing.
The IJ did find that the evidence supported the conclusion that
death squads continue to exist in El Salvador, but to an lesser
extent than suggested by Olivares. Further, the IJ found that
Olivares was not entirely credible, given his contradictory reasons
for believing that he would be tortured in El Salvador. As the IJ
noted, during the period during which Olivares had experienced
violence in El Salvador (over 20 years ago), he had only been
detained once for his political participation in political events.
Further, none of Olivares’ family members who continue to reside in
El Salvador have ever been detained by a death squad of other
alleged faction of the government. Consequently, the BIA was
correct in finding that Olivares’ evidence does not rise to the
likelihood of torture that is required for relief under the CAT.
The petition for review is DENIED.

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